REUTERS | David Mdzinarishvili

I had a feeling of deja vu when I looked at Lord Bannatyne’s judgment in Edinburgh Schools Partnership Ltd v Galliford Try Construction (UK) Ltdnot only because Galliford Try were involved, but because the main focus of the judgment was on assignation, the Scottish equivalent of assignment.

I looked at these issues earlier this year when I considered O’Farrell J’s judgment in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd. At the time I said that the judgment was “enough to make your head hurt”. I’m not sure it has got any easier, second time around! Continue reading

REUTERS | Gleb Garanich

Staff turnover in the construction industry can be particularly high and finding the right person to give evidence on all issues in a case can sometimes be difficult. Parties are often suspicious when they know there is someone who should be able to give evidence for their opponent, but whom their opponent does not plan to call. There is an obvious risk in a party calling that witness when there has been a seemingly positive pre-existing relationship with the opposing party. Consequently, it is more common for a party to invite the court to draw an adverse inference where a witness should have been called to give evidence, but is absent from the proceedings.

The principles as to when such an inference will be drawn were recently considered by the TCC in Riva Properties Ltd v Foster + Partners Ltd. Interestingly, the court took into account the fact that, in cross examination, the defendant’s witness evidence had leant towards the claimant’s case as a relevant factor in deciding whether or not an inference should have been drawn against the claimant. Continue reading

REUTERS | Ilya Naymushin

On the face of it, Jefford J’s judgment in Merit Holdings Ltd v Michael J Lonsdale Ltd is a fairly typical one about payment, arising as it does, out of the construction of a new development, One Angel Court, London. However, her comments about when parties should use Part 8 for “adjudication business”, as set out in the TCC Guide, make the judgment interesting because, she says:

“… there is a real risk of the Part 8 procedure being used too liberally and inappropriately with the risks both of prejudice to one or other of the parties in the presentation of their case and of the court being asked to reach ill-formulated and ill-informed decisions.”

Continue reading

REUTERS |

The recent decision in Riva Properties Ltd v Foster + Partners Ltd, considers the duties that an architect owes to its client, specifically in the context of working in accordance with the client’s budget. Helena White and Matt Malloy have recently written about issues of contributory negligence and evidence arising out of the case. One of the most interesting aspects of the decision for me is that, over the course of a searing 313 paragraph judgment, Fraser J delivers a forceful reminder that client service is at the heart of the construction industry. Although the case specifically concerns the provision of architectural design services, it is a cautionary tale of the consequences of failing to put clients’ objectives first, which is just as relevant to lawyers, professional advisers of any specialism and indeed to all parties involved in the delivery of construction projects. Continue reading

REUTERS | Hannah McKay

Over 170 delegates attended the Adjudication Society’s annual conference in London last week to listen to speakers discuss and debate issues centring on “The users’ experience and what can be done to improve it?“.

However, the conference started with a tribute to Sir Michael Latham whose report, Constructing the Team, was so instrumental in introducing statutory adjudication in the UK. Sir Michael’s report acknowledged the adversarial attitude of the UK construction industry and identified that, while the best solution is to avoid disputes, a system of adjudication needed to be introduced. He recommended that:

“… if a dispute cannot be resolved first by the parties themselves in good faith, it is [to be] referred to the adjudicator for [a] decision.”

Therefore, it was fitting that the first session considered the collaborative and non-adversarial Conflict Avoidance Process (CAP), first introduced by Transport for London (TfL) into Costain plc’s contract for the Bond Street refurbishment and Crossrail upgrade. Continue reading

REUTERS | Denis Balibouse

On 1 May 2018 it will be 20 years since the Construction Act 1996 came into force. I think it is fair to say that, despite initial reservations by some about its introduction, most people would agree that, overall, the statutory adjudication and payment provisions have been successful. That said, like any adolescent, its teenage years have been somewhat difficult, which is mainly down to the 2011 amendments (introduced by Part 8 of the LDEDC Act 2009) to both the Act and the Scheme for Construction Contracts 1998.

Therefore, I was delighted to receive an email from a friend a couple of weeks ago letting me know that the Department for Business, Energy & Industrial Strategy (BEIS) had published a consultation on the 2011 amendments. The consultation can be accessed here and you have until 19 January 2018 to submit your thoughts.

Not only that, but the government has also published a consultation on the practice of cash retention under construction contracts (with the same January deadline). Although it is a very relevant and worthwhile consultation, it is the consultation on the 2011 amendments that I want to focus on today. Continue reading

REUTERS | Vijay Mathur

In Adam Architecture Ltd v Halsbury Homes Ltd, the Court of Appeal has confirmed that section 111 of the Construction Act 1996 (and the requirement to serve pay less notices) applies to payments due following completion or termination of a contract, as well as interim payments.

In giving the leading judgment, Jackson LJ said he reached this conclusion based on the clear words in the Act and in light of the authorities (of which, see below). Consequently, employers (and their agents) need to be alive to the need to serve a pay less notice in response to any such account if they wish to avoid the prospect of an adjudicator’s decision against them for the full amount claimed. Continue reading

REUTERS | Juan Carlos Ulate

Payment in the construction industry is regulated by the Construction Act 1996, as amended by the LDEDC Act 2009. One of the reasons behind the introduction of the Construction Act 1996 was to ease cashflow and speed up payment. However, it has to be questioned whether this aim has been achieved (and I note this is the sort of issue raised in the English consultation on the Act, which was published last week). Continue reading